Friday, January 29, 2010

Khadr ruling

Update (7:45 p.m.) below.

Here's a link to the Khadr ruling from the Supreme Court today: Canada (Prime Minister) v. Khadr. Just drafted a post then lost it due to a temporary internet connection disruption, blasted. Oh well. As best as I can recall, it went something like this...

The Court is, in a sense, having it both ways. They did not agree with the federal government's sweeping argument that the Court has no right to interfere in the exercise of the executive's foreign affairs discretion: " the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure the constitutionality of executive action..." [para 38]. So the Harper government has been told that it was wrong on that score. That's a significant point for future cases, it brushes back this broad argument from the Harper government.

For Khadr, they agree that his rights were violated. So in essence, they agree with the two lower courts who also held that. However, it's the remedy that's the problem because, in their view, it is not supported by the "inadequacy of the record." Meaning essentially that the case is shifting, they note that even during the Supreme Court hearings, the U.S. government made a determination that Khadr would be tried by a military commission at Guantanamo Bay versus in the federal courts of the U.S. They profess to know nothing of "representations" or "negotiations" that might have or will take place. So they're being cautious in not granting the repatriation remedy. They can't order it in the face of this uncertainty, is what they're saying.

What they do, however, is to grant a declaration to Khadr, basically agreeing with his case and acknowledging, again, that his Charter rights have been violated and Canada was complicit in that. Khadr is now armed with that declaration and can turn to the government anew for a remedy:

[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.

IV. Conclusion

[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.

This decision takes on greater significance, perhaps, being granted during this "prorogued" moment. The government is under increased scrutiny for its shut down of Parliament and how it is conducting itself in democratic terms. Now they'll be forced to publicly state whether or not they will indeed act on a declaration from the Supreme Court of Canada that a Canadian citizen's rights have been violated. If they don't, they'll bear responsibility for ignoring the Supreme Court of Canada. That's not more of what they need right now.

The decision was unanimous and actually quite short. In that sense, there's little for the government to hang its hat on if it wanted any kind of validation for its laggard behaviour thus far or any kind of new statement to justify its continuing inaction going forward.

Bottom line, this judgment today did not end the matter. I actually think the Court has done a clever thing in shining a spotlight on the government like this, I don't agree that it's a "win" of any kind for the government. Particularly in light of the growing perception of them as led by the proroguer-in-chief.